SIX RIVERS NATIONAL BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of February,
1999, by and between SIX RIVERS NATIONAL BANK, a national banking association
(the "Company"), and Xxxxxxx X. Xxxxxxxx (the "Employee").
INTRODUCTION
A. Employee is a member of a select group of management
or highly compensated employees of the Company.
B. The Company desires to retain the services of
Employee and in consideration of future services to be provided by Employee to
the Company the Company will pay to Employee certain future payments, subject to
the limits and conditions set forth in this Agreement.
AGREEMENT
Employee and the Company agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases shall have the meanings specified:
"ANNUAL RETIREMENT BENEFIT" means the product of
$21,514 multiplied by each full Year of Service, up to a maximum annual
benefit of $215,136.
"BENEFICIARY" means a person determined under Section
5.1 to receive benefit payments under this Agreement following
Employee's death.
"CAUSE" means (i) a material breach by Employee of
any of the terms or provisions of his Employment Agreement with the
Company, (ii) the repeated neglect by Employee of his duties under the
Employment Agreement or any material act of dishonesty, intentional
misrepresentation or moral turpitude, including the misappropriation or
embezzlement of property of the Company or a customer of the Company,
the unauthorized intentional disclosure of confidential information, or
a fraud by Employee in the performance of his duties as an employee of
the Company, (iii) Employee is convicted of a misdemeanor involving
moral turpitude or a felony, (iv) conduct that would preclude the
Company's ability to bond Employee, or (v) a written finding, order or
directive from any state or federal banking regulator with jurisdiction
over the Company that Employee has operated the Company in an unsafe
manner or ordering the removal of Employee as an executive officer of
the Company.
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"CHANGE OF CONTROL" means (i) the closing of any
merger, consolidation or sale of substantially all of the assets of the
Company in which the Company is not the surviving entity; provided,
however, if the Company's board of directors and officers remain in
their positions for at least twelve months following the transaction
with the same authority and control that existed prior to the
transaction then this provision shall not apply, (ii) a tender offer or
exchange offer for the outstanding shares of the Company as a result of
which the offeror acquires in excess of 50% of the Company's
outstanding shares, or (iii) a merger or consolidation of the Company
with another corporation that results in the former shareholders of the
Company, as they existed immediately prior to such merger or
consolidation, owning in the aggregate less than 50% of the outstanding
voting securities of the surviving or resulting corporation; provided,
however, if the Company's board of directors and officers remain in
their positions for at least twelve months following the transaction
with the same authority and control that existed prior to the
transaction then this provision shall not apply, or (iv) any other
transaction that, although different in form, accomplishes
substantially the same result as (i), (ii) or (iii).
"CODE" means the Internal Revenue Code of 1986, as
amended.
"EFFECTIVE DATE" means February 1, 1999.
"ELECTION FORM" means the Form attached as Exhibit 1.
"NORMAL RETIREMENT DATE" means the later of
Employee's sixty-fifth birthday or Termination of Employment.
"PLAN ADMINISTRATOR" means the Board of Directors of
Six Rivers National Bank or their appointee.
"TERMINATION OF EMPLOYMENT" means that the Employee
ceases to be employed by the Company for any reason whatsoever other
than by reason of a leave of absence which is approved by the Company.
For purposes of this Agreement, if there is a dispute over the
employment status of the Employee or the date of the Employee's
Termination of Employment, the Company's determination shall be
conclusive.
"YEAR OF SERVICE" means each computation period of
twelve consecutive months during which the Employee is employed on a
full-time basis by the Company, inclusive of any approved leave of
absence. The initial computation period shall begin on the Effective
Date and ends twelve months thereafter.
ARTICLE 2
RETIREMENT BENEFITS
2.1 RETIREMENT BENEFITS. Provided Employee meets the
requirements for retirement benefits under this Agreement, the Company will pay
to Employee the Annual Retirement Benefit for each of the fifteen years
following Employee's Normal Retirement Date. Retirement benefits payable under
this Agreement shall commence on the first day of the calendar month following
Employee's Normal Retirement Date and shall be payable in equal monthly
installments.
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2.2 VESTING UPON CHANGE OF CONTROL. In the event of a
Change of Control Employee shall be entitled to the maximum Annual Retirement
Benefit without regard to Employee's Years of Service.
ARTICLE 3
DEATH BENEFIT ELECTION
3.1 If Employee dies before receiving the full amount of
retirement benefits to which Employee is entitled under Section 2.1, the Bank
shall pay the remaining amount of retirement benefits to the Beneficiary.
Employee may elect to have the Beneficiary receive a lump sum payment equal to
the present value of the future retirement benefits determined as of the date of
Employee's death, which payment shall be paid within 30 days after the Bank
receives notice of Employee's death. For this purpose, the "present value of the
future retirement benefits" shall be determined by using a discount rate equal
to 120 percent of the applicable Federal rate (determined under Section 1274(d)
of the Code) in effect as of Employee's date of death, compounded semiannually.
The election available under this Article 3 must be made at the time this
Agreement is signed, by signing and delivering the Election Form to the Bank. If
Employee does not make the election, the unpaid retirement benefits to which
Employee is entitled as of his death shall be paid to the Beneficiary at the
times and in the amounts such payments would have been paid to Employee.
3.2 PRE-RETIREMENT DEATH BENEFIT. If the participant dies
prior to reaching age 65 no benefits of any kind will be payable under the terms
of this Agreement.
3.3 TERMINATION OF EMPLOYMENT PRIOR TO RETIREMENT OTHER
THAN FOR DEATH OR TERMINATION FOR CAUSE, BUT INCLUDING DISABILITY. If
termination of employment occurs other than for death or for cause, the
participant shall be entitled to a termination benefit, due and payable at his
otherwise Normal Retirement Date. The amount of the benefit shall be $21,514
multiplied by each full Year of Service up to a maximum annual benefit of
$215,136.
ARTICLE 4
FORFEITURE UPON TERMINATION FOR CAUSE
Notwithstanding any provision of this Agreement to the
contrary, Employee shall forfeit his entire benefit if his employment with the
Company is terminated for Cause.
ARTICLE 5
BENEFICIARIES
5.1 BENEFICIARY DESIGNATIONS. The Employee shall
designate a beneficiary by filing a written designation with the Company. The
Employee may revoke or modify the designation at any time by filing a new
designation. However, designations will only be effective if signed by the
Employee and accepted by the Company during the Employee's lifetime and the
designation of any person other than Employee's spouse must be accompanied by
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the written consent of Employee's spouse. The Employee's beneficiary designation
shall be deemed automatically revoked if the beneficiary predeceases the
Employee or if the Employee names a spouse as beneficiary and the marriage is
subsequently dissolved. If the Employee dies without a valid beneficiary
designation, all payments shall be made to Employee's estate.
5.2 FACILITY OF PAYMENT. If a benefit is payable to a
minor, to a person declared incompetent, or to a person incapable of handling
the disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
5.3 LUMP SUM BENEFIT OPTION. In lieu of receiving
installment and or delayed payments under any of the above numbered paragraphs,
the Executive (or the Executive's beneficiary in the event of the death of said
Executive) may petition the PLAN ADMINISTRATOR to receive a lump sum benefit.
The value of the lump sum benefit shall be the present value of the remaining
installment payments as determined by using a discount rate and methodology as
defined in Article 3.1 of this Agreement; it being understood that the PLAN
ADMINISTRATOR shall have the final authority to either grant or reject said
request.
ARTICLE 6
EXCESS PARACHUTE PAYMENT
Notwithstanding any other provision of this Agreement, if any
payment to be made or benefit to be provided to Employee pursuant to this
Agreement, after taking into account all other payments or benefits provided by
the Company to Employee, would constitute a "parachute payment" as defined in
Section 280G of the Code, then the payments to be made or benefits to be
provided to Employee shall be reduced so that the aggregate present value of all
parachute payments does not exceed 299% of Employee's "annualized includible
compensation for the base period" (as such term is defined in Section 280G(d)(1)
of the Code). The determination of any reduction in the payments or benefits to
be provided to Employee shall be made by the Company and the Company's
determination shall be conclusive and binding on Employee.
ARTICLE 7
CLAIMS AND REVIEW PROCEDURES
7.1 CLAIMS PROCEDURE. The Company shall notify any person
or entity that makes a claim under this Agreement (the "Claimant") in writing,
within ninety (90) days of Claimant's written application for benefits, of his
or her eligibility or non-eligibility for benefits under the Agreement. If the
Company determines that the Claimant is not eligible for benefits or full
benefits, the notice shall set forth (1) the specific reasons for such denial,
(2) a specific reference to the provisions of the Agreement on which the denial
is based, (3) a description of any additional information or material necessary
for the Claimant to perfect his or her claim, and a description of why it is
needed, and (4) an explanation of the Agreement's claims review procedure and
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other appropriate information as to the steps to be taken if the Claimant wishes
to have the claim reviewed. If the Company determines that there are special
circumstances requiring additional time to make a decision, the Company shall
notify the Claimant of the special circumstances and the date by which a
decision is expected to be made, and may extend the time for up to an additional
ninety (90) days.
7.2 REVIEW PROCEDURE. If the Claimant is determined by
the Company not to be eligible for benefits, or if the Claimant believes that he
or she is entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition for
review with the Company within sixty (60) days after receipt of the notice
issued by the Company. Said petition shall state the specific reasons which the
Claimant believes entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the Company of the petition,
the Company shall afford the Claimant (and counsel, if any) all opportunity to
present his or her position to the Company verbally or in writing, and the
Claimant (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the Claimant of its decision in writing within the
sixty-day period, stating specifically the basis of its decision, written in a
manner calculated to be understood by the Claimant and the specific provisions
of the Agreement on which the decision is based. If, because of the need for a
hearing, the sixty-day period is not sufficient, the decision may be deferred
for up to another sixty (60) days at the election of the Company, but notice of
this deferral shall be given to the Claimant.
ARTICLE 8
AMENDMENTS AND TERMINATION
This Agreement may be amended or terminated only be a written
agreement signed by the Company and the Employee.
ARTICLE 9
MISCELLANEOUS
9.1 BINDING EFFECT. This Agreement shall bind the
Employee and the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
9.2 NO EMPLOYMENT CONTRACT. Nothing contained in this
Agreement shall be construed to create any express or implied employment
contract between Employee and the Company nor to confer upon Employee the right
to continue to be employed by the Company in any capacity. In addition, nothing
contained herein, nor any action taken by either party pursuant to the terms
hereof, shall be construed to create any trust or fiduciary relationship between
the Company and Employee.
9.3 NON-TRANSFERABILITY. Except as may otherwise be
required by law, no amount payable at any time under this Agreement shall be
subject in any manner to alienation by anticipation, sale, transfer, assignment,
bankruptcy, pledge, attachment, charge or encumbrance of any kind or in any
manner be subject to the debts or liabilities of any persons and any attempt to
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so alienate or subject any such amount, whether payable currently or at a later
date, shall be void.
9.4 TAX WITHHOLDING. The Company shall withhold any tax
which is required to be withheld from the benefits provided under this
Agreement, including but not limited to FICA, Medicare and FUTA contributions
and income tax withholding on benefit payments.
9.5 APPLICABLE LAW. This Agreement and all rights
hereunder shall be governed by the laws of the State of California, except to
the extent preempted by the laws of the United States of America.
9.6 UNFUNDED ARRANGEMENT. The rights of Employee, any
designated Beneficiary, or any other person claiming through the Employee or his
designated Beneficiaries under this Agreement, shall be solely those of an
unsecured general creditor of the Company, and the Company's obligation shall be
an unfunded and unsecured promise to pay. Neither Employee nor his Beneficiaries
or other persons shall have any rights, interests or prior claims whatsoever in
any of the Company's assets. The Company's obligations under this Agreement
shall be satisfied from the general assets of the Company, and any asset which
may be used or acquired by the Company in connection with the liabilities it has
assumed under this Agreement shall not be deemed to be held under any trust or
escrow for the benefit of Employee or his Beneficiaries, nor shall it be
considered security for the performance of the obligations of the Company.
9.7 NOTICES. Any notice required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered personally or if deposited in the United States mail, registered or
certified mail, postage prepaid and return receipt requested, to the most recent
address of the party set forth in the records of the Company or to such other
address as may be designated by notice in writing pursuant to the terms of this
Section 9.7 to the other party to this Agreement.
9.8 ADMINISTRATION. No officer or employee of the Company
or any member of its Board of Directors shall be personally liable by reason of
this Agreement or any other instrument executed in connection with this
Agreement by such person or on his or her behalf or in his or her capacity as an
employee or member of the Board of Directors nor for any mistake of judgment
made in good faith, and the Company shall indemnify and hold harmless each such
officer, employee, or Director of the Company to whom any duty or power relating
to the administration or interpretation of this Agreement has been delegated,
against any cost or expense (including attorneys' fees) or liability (including
any sum paid in settlement of a claim with the approval of the Board of
Directors) arising out of any act or omission to act in connection with this
Agreement unless arising out of such person's own fraud or bad faith.
9.9 PROTECTIVE PROVISIONS. Employee shall cooperate with
the Company by furnishing any and all information requested by the Company in
order to facilitate the payment of benefits, taking physical examinations as the
Company may deem necessary and taking other relevant action as may be requested
by the Company. If Employee commits suicide during the first two years following
the Effective Date, or if Employee makes any material misstatement of
information or nondisclosure of medical history, then no benefits will be
payable to Employee or his Beneficiary, provided that, in the Company's sole
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discretion, benefits may be payable in an amount reduced to compensate the
Company for any loss, cost, damage or expense suffered or incurred by the
Company as a result in any way of misstatement or nondisclosure.
9.10 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the Company and the Employee as to the subject matter
hereof. No rights are granted to the Employee by virtue of this Agreement other
than those specifically set forth herein.
IN WITNESS WHEREOF, the Employee and a duly authorized Company
officer have signed this Agreement.
EMPLOYEE: COMPANY:
SIX RIVERS NATIONAL BANK
/s/ XXXXXXX X. XXXXXXXX BY /s/ XXXXXXXX XXXX
----------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxxx Xxxx
TITLE Executive Vice President and Branch Administator
------------------------------------------------
Initials of XXXXXXX X. XXX
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EXHIBIT 1
TO
SIX RIVERS NATIONAL BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
LUMP SUM PAYMENT ELECTION
In the event of my death, I elect to have the present value of any unpaid
benefits paid to my Beneficiary in a lump sum payment in accordance with Article
3 of the Agreement.
Signature ______________________
Date ___________________________
Accepted by the Company this _____ day of __________________, 19__.
By _____________________________
Title __________________________
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EXHIBIT 2
TO
SIX RIVERS NATIONAL BANK
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
BENEFICIARY DESIGNATION
I designate the following as beneficiary of benefits under the Supplemental
Executive Retirement Agreement payable following my death:
Primary: _______________________________________________________________________
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Contingent: ____________________________________________________________________
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NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE
TRUSTEE(S) AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the designations
will be automatically revoked if the beneficiary predeceases me, or, if I have
named my spouse as beneficiary and our marriage is subsequently dissolved.
Signature ______________________
Date ___________________________
Accepted by the Company this _____ day of __________________, 19__.
By _____________________________
Title __________________________
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